Judge: Michael C. Kelley, Case: 22AVCV00095, Date: 2022-08-04 Tentative Ruling

Case Number: 22AVCV00095    Hearing Date: August 4, 2022    Dept: A15

Background

This wrongful death case arises from allegations by Plaintiffs A’laija George, Alexis George, and Dwayne Parker (collectively, “Plaintiffs” or “Petitioners”) that Defendant Antelope Valley Medical Center, a facility of the Antelope Valley Healthcare District (erroneously sued as Antelope Valley Hospital and hereinafter “AVH”) provided negligent care and treatment to Plaintiffs’ father, Decedent Lawrence Calvin George Jr. (“Decedent”). (Compl. ¶¶ 10, 23.)

Plaintiffs allege that, from March 14, 2019, to March 16, 2019, Decedent was a patient at Defendant AVH’s hospital following a stab wound to the chest. (Compl. ¶ 17.) According to the autopsy report prepared after an investigation into Decendent’s death, Decedent suffered a fatal stab wound “penetrating the left internal jugular vein[.]” The investigation also revealed that “the decedent and suspect were arguing in an alley when the decedent took the suspects purse and started to walk away. The suspect followed to get her purse back and they started to get into a physical altercation. The decedent at one point struck the suspect in the ear who retaliated by punching the decedent and stabbing him once.” The autopsy investigation also notes that “the decedent was found unresponsive [two days after the incident] and in V-fib by a nurse.” According to the report, the decedent was pronounced dead approximately 20 minutes later after life saving measures were taken by hospital staff.  

Plaintiffs originally attributed Decedent’s March 16, 2019 death to the stabbing by Vanessa Warren. (Id., ¶ 18.) However, Plaintiffs allege that they learned in April 2021 that Defendant AVH negligently treated their father during his hospital stay. (Ibid.) Plaintiffs served Defendant AVH with a government claim on October 19, 2021. (Id., ¶ 21.)

Plaintiffs filed the operative complaint on February 14, 2022 against Defendant AVH, and Decedent’s other heirs: Defendants Ruby Dulite, Lawrence George III, Deandre George, Keelon George, and Isiah George. Plaintiffs allege two causes of action for (1) professional negligence and (2) wrongful death.

Plaintiffs filed the instant Petition for Order Relieving Petitioners from Provisions of Government Code Section 945.4 on June 22, 2022, along with a supporting declaration.

Defendant AVH filed a timely opposition to the petition on July 21, 2022. It also filed a request for judicial notice and an evidentiary objection.

Plaintiffs filed a timely reply on July 28, 2022, along with an objection to Defendant AVH’s service of its opposition.

Analysis

Plaintiffs’ Objection to Defendant AVH’s Service of Its Opposition– Code of Civil Procedure section 1010.6, subdivision (a)(2)(A)(ii) authorizes the electronic service of a document “if a party or other person has expressly consented to receive electronic service in that specific action, the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d), or the document is served electronically pursuant to the procedures specified in subdivision (e).”

The aforementioned subdivision (e) requires represented parties to accept electronic service.

Here, Plaintiffs object to Defendant AVH’s service of its opposition papers because it served Plaintiffs’ counsel by email, and said counsel “has not consented to receive electronic service in this action.” (Pls.’ Obj. Resp. AVH Serv. at 2.) They therefore ask the Court to disregard Defendant AVH’s opposition papers.

A complete reading of Code of Civil Procedure section 1010.6 shows that represented parties must accept electronic service; there is no requirement to provide affirmative consent. Therefore, Plaintiffs’ objection is OVERRULED.

Defendant AVH’s Request for Judicial Notice-- Under the Evidence Code, the court may take judicial notice of the records of any court of this state, and must take judicial notice of those records if a party so requests and provides sufficient notice to the adverse party. (Evid. Code, §§ 452, subd. (d) & 453.)

Defendant AVH requests judicial notice of Decedent’s autopsy report, pursuant to Evidence Code section 452, subdivision (h), which permits the court to take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”

As the autopsy report indicates it was produced by the County of Los Angeles’s Department of Medical Examiner, the Court may take judicial notice of it as an official act of an executive department of a state of the United States. (Evid. Code, § 452, subd. (c).) This is because “[o]fficial acts include records, reports and orders of administrative agencies." (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518.)

Defendant AVH’s Request for Judicial Notice of Decedent’s autopsy report is GRANTED.

Defendant AVH’s Evidentiary Objections—Defendant AVH has submitted seven objections to portions of the declaration of Plaintiffs’ attorney, Michael Zelman, and portions of Plaintiffs’ Exhibit 3.

Objection 1: AVH cites Evidence Code section 403 as the basis for its first objection. Section 403 requires a proponent of a witness’s testimony to produce evidence of that witness’s personal knowledge. (Evid. Code, § 403, subd. (a)(2).) “[T]he required foundation for personal knowledge is not high. It is well below what is necessary for a determination by the court that a statement is credible.” (Forest Lawn Memorial-Park Association v. Superior Court of Riverside County (2021) 70 Cal.App.5th 1, 11.) 

As such, AVH objects to the sentence in the first paragraph of the Zelman declaration, in which Mr. Zelman attests, “I am familiar with the files, pleadings, and facts in this case and could and would competently testify to the following facts on the basis of my own personal knowledge.” AVH objects to this sentence because, according to AVH, Mr. Zelman does not have personal knowledge of Decedent’s care and treatment.

But the declaration contains nothing of that matter. The facts in his declaration pertain to the presentation and denial of Plaintiffs’ government claim. There is no doubt that Mr. Zelman, as Plaintiffs’ attorney and the person who prepared the government claim and received AVH’s response, has personal knowledge of these facts. Therefore, AVH’s first objection is OVERRULED.

Objection 2: AVH again cites Evidence Code section 403 as the basis for its second objection. AVH objects to the second paragraph of the Zelman declaration, in which Mr. Zelman attests, “On October 19, 2021, Petitioners timely presented to Antelope Valley Hospital a government claim letter pursuant to and in compliance with Government Code § 910.” (Pls.’ Decl. Zelman Supp. Pet. Ord. Relieving Pets. Provisions Gov. Code, § 945.4 ¶ 2.)

The Court finds Mr. Zelman has personal knowledge of the fact that Petitioners presented a government claim to AVH on October 19, 2021. As for his opinion that the presentation was “timely,” since the issue of whether the claim presentation was “timely” is material to the instant petition, the Court, as the finder of fact, shall reach its own conclusion.

AVH’s second objection is OVERRULED.

Objection 3: AVH cites Evidence Code section 403 and Evidence Code section 1200 as the bases for its third objection. Evidence Code section 1200 provides that evidence is not admissible if it is hearsay and does not qualify for a statutory exception. (Evid. Code, § 1200, subd. (b).)

AVH objects to a sentence in Plaintiffs’ Exhibit 3, which Mr. Zelman identified as Plaintiffs’ Petition for Leave to Present Tort Claim, and which Mr. Zelman attests was presented to AVH on December 3, 2021. (Pls.’ Decl. Zelman Supp. Pet. Ord. Relieving Pets. Provisions Gov. Code, § 945.4 ¶ 4.) AVH objects to the sentence in the claim which states, “However, the charges were reduced to manslaughter when the Assistant District Attorney handling the case discovered evidence that the death was related to medical malpractice.” (Pls.’ Decl. Zelman Supp. Pets. Ord. Relieving Pet. Provisions Gov. Code, § 945.4 at Ex. 3.)

The Court agrees Plaintiffs have proffered this statement without establishing a foundation for their personal knowledge of the prosecuting attorney’s charging decisions. Therefore, this objection is SUSTAINED.

Objection 4: AVH again cites Evidence Code sections 403 and 1200 as the bases for this objection. It objects to another sentence in Plaintiffs’ government claim, which states, “It was only after Ms. Warren—who was convicted of the reduced charge—was released from jail in April, 2021, that Petitioners were alerted to the fact that their father’s death may have been attributable to something other than the stabbing.” (Pls.’ Decl. Zelman Supp. Pet. Ord. Relieving Pets. Provisions Gov. Code, § 945.4 at Ex. 3.)

The Court, accepting that Exhibit 3 is Plaintiffs’ government claim and was prepared by their counsel, finds Plaintiffs’ counsel had personal knowledge as to when Plaintiffs first began to believe Decedent’s death was attributable to something other than the stabbing. This is because it is reasonable to assume Plaintiffs communicated this information to their counsel in the course of obtaining legal services.

As for whether the statement is hearsay, the Court finds the government claim is not being offered for the truth of the matter asserted therein, but rather, to prove its own existence. For the purposes of this petition, Plaintiffs need to establish their attempts to present a government claim. Therefore, they have lodged proof of the government claim they allegedly presented. Hence, the letter and its contents are not hearsay. AVH’s fourth objection is OVERRULED.

Objection 5: AVH objects to another sentence in Plaintiffs’ government claim, again on the bases of foundation and hearsay. The sentence is, “In May or early June of 2021, after following up on the relatively early release of [] Ms. Warren, [] Petitioners were made aware of the potential medical malpractice.” (Pls.’ Decl. Zelman Supp. Pet. Ord. Relieving Pets. Provisions Gov. Code, § 945.4 at Ex. 3.)

For the same reasons as Objection 4, this fifth objection is OVERRULED.

Objection 6: AVH’s sixth objection is based on lack of foundation, hearsay, and expert opinion. It objects to a sentence in the government claim, which states, “As a result, the cause of action cannot have accrued until May 1, 2021 at the earliest.”

For the same reasons as Objections 4 and 5, the Court finds this statement is supported by sufficient foundation and is not hearsay. Additionally, as the Court found the government claim is not being offered for the truth of its contents, the Court shall not accept as true the letter’s legal conclusion that the cause of action could not have accrued until May 1, 2021. This objection is OVERRULED.

Objection 7: AVH’s seventh objection is based on foundation and hearsay. It objects to the sentence in the government claim which states, “Therefore Petitioner’s Tort Claim Form, submitted on October 19, 2021, was submitted timely . . . .” (Pls.’ Decl. Zelman Supp. Pet. Ord. Relieving Pets. Provisions Gov. Code, § 945.4 at Ex. 3.)

For the same reasons as Objections 4, 5, and 6, the Court finds this statement is supported by sufficient foundation and is not hearsay. The objection is OVERRULED.

Petition for Relief from Requirements of Government Claims Act-- The Government Claims Act requires potential plaintiffs to present an administrative claim before filing a civil action against a public entity. (Gov. Code, § 945.4.) The purpose of the claim presentation requirement is to provide a “public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.” (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455.) In passing the Government Claims Act, the Legislature intended to “confine potential governmental liability to rigidly delineated circumstances.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.)

A “failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity.” (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.) “A claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented . . . not later than six months after the accrual of the cause of action.” (Gov. Code, § 911.2, subd. (a).)

Claimants who do not present their administrative claims within the required timeframe still have an opportunity to bring a claim. They must first submit a written application to the public entity for leave to bring a belated claim. (Gov. Code, § 911.4) The application must be submitted within one year of the cause of action’s accrual. (Id., § 911.4, subd. (a).)

A plaintiff who fails to comply with the six-month deadline to present a claim, and the one-year deadline to apply for approval to present a belated claim may still be permitted to file a lawsuit if the court grants a petition for relief. (Gov. Code, § 946.6, subd. (a).) The court must grant the petition if it finds (1) the petitioner applied to the government entity for leave to present a belated claim within one year of the accrual of the cause of action, (2) the application was either denied or ignored, and (3) the untimeliness of the claim was due to, in relevant part, mistake, inadvertence, surprise, excusable neglect, physical or mental incapacitation, or death. (Id., §§ 911.4, subd. (b) & 946.6, subd. (c).)

“Filing a late-claim application within one year after the accrual of a cause of action is a jurisdictional prerequisite to a claim-relief petition. [Citation.] When the underlying application to file a late claim is filed more than one year after the accrual of the cause of action, the court is without jurisdiction to grant relief under Government Code section 946.6.” (Munoz v. State of Cal., supra, 33 Cal.App.4th at 1779; Santee v. Santa Clara Cty. Office of Educ. (1990) 220 Cal.App.3d 702, 713.)

The plaintiff must demonstrate he has met these requirements “by a preponderance of the evidence . . . . In determining whether relief is warranted, the court will consider the petition, any affidavits submitted in support of or in opposition to the petition, and any other evidence presented at the hearing.” (Munoz v. State of Cal., supra, 33 Cal.App.4th at 1777–1778, citing Gov. Code, § 946.6, subd. (e); see also Dept. of Water & Power v. Super. Ct. (2000) 82 Cal.App.4th 1288, 1293.)

Here, Plaintiffs apply for the Court’s leave to proceed with the instant lawsuit, despite the fact that they belatedly presented their claim and were denied leave to file a late claim.

According to the Record of Death submitted by AVH, Decedent died on March 16, 2019. (Def. AVH Opp’n Pet. Ord. Relieving Pets. Gov. Code, § 945.4 at Ex. A.) Plaintiffs represent that they presented their government claim to AVH on October 19, 2021. (Pls.’ Decl. Zelman Supp. Pet. Ord. Relieving Pets. Provisions Gov. Code, § 945.4 at Ex. 1.) Plaintiffs’ wrongful death and professional negligence causes of action accrued on the day all the elements came to exist, which would generally be the day of Decedent’s death, i.e., March 16, 2019. Plaintiffs therefore had six months from March 16, 2019—in other words, September 16, 2019--to present their claim. Under this interpretation of the facts, Plaintiffs’ October 19, 2021, claim was untimely.

Thus, AVH denied their claim on the grounds of untimeliness. (Pls.’ Decl. Zelman Supp. Pet. Ord. Relieving Pets. Provisions Gov. Code, § 945.4 at Ex. 2.) Plaintiffs then proceeded to file for leave to present a late claim. They filed this request on December 3, 2021. (Id. at Ex. 3.) AVH denied that petition, too. (Id. at Ex. 4.)

For the Court to grant relief from the claim presentation requirements, the Court must first find that Plaintiffs applied for leave to present a belated claim within one year of the accrual of their causes of action. (Gov. Code, §§ 911.4, subd. (b) & 946.6, subd. (c).) AVH argues the causes of action accrued on the date of his death, March 16, 2019. Since Plaintiffs’ petition for leave to present a belated claim was filed with AVH on December 3, 2021, this petition was filed more than a year after the cause of action accrued.

But Plaintiffs argue the causes of action did not accrue until May 1, 2021, making their December 3, 2021, application for leave to present a late claim timely. They argue that they did not learn of AVH’s alleged role in Decedent’s death until after his attacker, Vanessa Warren, was released from custody in or around April 2021; when they inquired about why Warren was released earlier than expected, they learned that her “charge had been reduced from a murder charge to a manslaughter charge, due to the role that medical malpractice by Antelope Valley Hospital played in” Decedent’s death. (Pls.’ Pet. Ord. Relieving Pets. Provisions Gov. Code, § 945.4 at 4.) This, according to Plaintiffs, was when they first had reason to believe AVH’s medical malpractice contributed to Decedent’s death and is therefore the moment when their causes of action accrued.

In other words, they argue that the accrual of their causes of action was postponed by the delayed discovery rule.

Postponement of the Accrual of the Cause of Action—For the purpose of a government claim, the “accrual of the cause of action” is defined in Government Code section 901: 

For the purpose of computing the time limits prescribed by Sections 911.2, 911.4, 945.6, and 946.6, the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon. 

(Gov. Code, § 901.) In other words, “[a]ccrual of the cause of action for purposes of the government claims statute is the date of accrual that would pertain under the statute of limitations applicable to a dispute between private litigants.” (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208–209.) According to the Supreme Court, “Generally speaking, a cause of action accrues at ‘the time when the cause of action is complete with all of its elements.’” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806, quoting Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 87 Cal.Rptr.2d 453, 397.)

The elements of a cause of action for wrongful death are the tort, the resulting death, and the damages. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263.) The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) 

Generally, an heir’s cause of action for wrongful death accrues upon the death of the decedent. (Larcher v. Wanless (1976) 18 Cal.3d 646, 657.) However, the “discovery rule” creates an exception: it “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) Additionally, a cause of action for medical malpractice begins accruing when “the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” (Code Civ. Proc., § 340.5.)

The accrual date for presenting a government tort claim is determined by the rules applicable to determining when any ordinary cause of action accrues. [Citation.] That date may be postponed under the delayed discovery doctrine. [Citation.] Under this doctrine, a cause of action does not accrue until the plaintiff discovers, or has reason to discover, the cause of action. [Citation.] A plaintiff has reason to discover a cause of action when he or she has reason to at least suspect a factual basis for its elements. Suspicion of one or more of the elements, coupled with knowledge of any remaining elements, will generally trigger the applicable limitations period. [Citation.] This refers to the “generic” elements of wrongdoing, causation, and harm and does not require a hypertechnical approach.

(S.M. v. Los Angeles Unified School Dist. (2010) 184 Cal.App.4th 712, 717.)

Furthermore, “a petitioner must show more than his or her failure to discover a fact until too late; the petitioner must establish that in the use of reasonable diligence he or she failed to discover it.” (Munoz v. State of Cal., supra, 33 Cal.App.4th at 1784; Dept. of Water & Power v. Super. Ct., supra, 82 Cal.App.4th 1288 at 1293.)

Here, Plaintiffs argue they did not discover their causes of action until May 2021. AVH argues in its opposition that Plaintiffs are essentially arguing that they are entitled to relief due to mistake, inadvertence, surprise, or excusable neglect, and have not met their burden of proving this by a preponderance of evidence.

But to reiterate, the requirement to apply for leave to present a late claim within a year is jurisdictional. If the Court finds the one-year deadline has passed, it need not reach the question of whether the failure to timely present the claim was through mistake, inadvertence, surprise, or excusable neglect. (Munoz v. State of Cal., supra, 33 Cal.App.4th at 1782.) The requirement to timely apply for leave is a discrete precondition, distinct from the requirement to show mistake, inadvertence, surprise, etc.

Thus, the Court first reaches the question of whether Plaintiffs applied for leave to present the late claim within one year, which in turn requires the Court to first determine whether Plaintiffs are entitled to application of the delayed discovery rule. The Court concludes they are not.

Plaintiffs have submitted copies of their government claim, their application for leave to file a late claim, and AVH’s responses. (Pls.’ Decl. Zelman Supp. Pet. Ord. Relieving Pets. Provisions Gov. Code, § 945.4 at Exs. 1-4.) However, they have not provided proof of the facts they have alleged to support their argument that they learned of AVH’s potential medical malpractice from the District Attorney, nor proof that they acted with reasonable diligence. They have not provided, for example, copies of or testimony about any correspondence from the prosecutor, proof of Warren’s charges or conviction, proof of Warren’s release from custody, or even an evidentiary declaration attesting to their alleged “diligent investigation.” (Pls.’ Pet. Ord. Relieving Pets. Provisions Gov. Code, § 945.4 at 5.) The copies of their government claim, application for leave to present a late claim, and AVH’s responses merely show that they engaged in the claim presentation process—and in fact shows that they did so belatedly. The contents of their claim are merely allegations, akin to those pled in their complaint; and, as with the allegations in a complaint, the allegations in their claim cannot themselves prove their own truth. Therefore, Plaintiffs have not shown that they did not discover the medical malpractice until May 2021.

The burden is Plaintiffs’ to show they are entitled to relief from their untimely claim. Because they have failed to show they did not discover their causes of action until May 2021, they have not shown that their accrual date should be delayed. Therefore, they have not met their burden of showing their application for leave to file a late claim was timely. Upon reaching this determination, the Court need not evaluate whether Plaintiffs sufficiently proved the other two requirements for relief.

Conclusion